BC Family law changes and clarification of the law related to BC Separation, BC, Cohabitation and BC prenuptial and Marriage Agreements are proposed in Family Relations Act Reform White Paper 2010 legislation which will include a separate section for Bc family agreements acknowledging the important role marriage and separation agreements play in resolving family law issues.
The law respecting bc marriage, cohabitation and separation agreements will be simplified in that references to different types of agreements will be eliminated. The proposed statute will set out formalities for agreements, which if used will limit the court’s ability to set aside property and spousal support provisions of agreements.
It is important that the legal framework for agreements be as clear and straightforward as possible in order to encourage the use of written agreements. In furtherance of this objective, the proposed legislation provides further guidance on how agreements may be set aside:
• Child-related provisions in agreements may be set aside if they are not in the best interests of the child. (restates current law)
• Child support provisions in agreements may be set aside if they fail to comply with the Federal Child Support Guidelines. (restates current law)
• All agreements may be set aside on the basis of procedural fairness concerns, such as where there is inadequate disclosure or where one party has taken unfair advantage of the other.
(restates current law)
• Property and spousal support provisions in agreements that meet the formalities may only be set aside for non-procedural reasons in the limited circumstances where it would be clearly unfair not to do so. This is a significant restriction of the ability to vary compared to the current law. In considering whether to set aside a provision in an agreement a court will consider the length of time that has passed between the making of the agreement and the time at which the application is made, the intention of the parties in making the agreement to achieve certainty, and the objectives of the Act in relation to spousal support.
The government feels providing greater clarity around when a particular provision in an agreement may be set aside increases the certainty of the law and encourages parties to use written agreements to manage their affairs.
Parenting plans will not be made mandatory. While they are useful in many contexts, there are some circumstances, such as where there is an ongoing risk of family violence, where they are not appropriate.
These changes are only proposed at this time and it remains to be seen if part or all of them are made law in BC.
Call us at 1 877 602 9900 if you have a question concerning the fairness of any agreement you are contemplating making, enforcing or seeking to vary.
